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The US and the ICC, Part 2: Enter Obama

by Eric K. Leonard, Ph.D. on 19 Oct 2011 | Comments


Exclusive blog series on the ever-changing relationship between the United States and the International Criminal Court (part 2 of 3).

In the first instalment of this blog, it was determined that the Bush administration, although initially belligerent towards the International Criminal Court, was not the only belligerent domestic actor. In fact, it was discovered that the Bush administration actually softened their stance on the ICC as their tenure developed.  The result of this initial analysis is that opposition to the ICC appears neither partisan nor necessarily administration specific, but something more institutional and interest-based.  With that as our foundation, enter the Obama administration to the ICC fray. 

As a candidate for President of the United States Barack Obama’s support for the ICC could be described as lukewarm at best.  During the election process the Obama camp mentioned the ICC once and even this statement was brief in nature.  Then candidate Obama stated that the ICC would be a situation that his administration would look at—he would counsel with his generals and military personnel and then they would approach the subject at a later date.  In short, he danced around the issue of the ICC and possible US support under his administration, never providing a definitive statement on his sentiments towards the Court.  This despite his definitive acceptance of a more multilateral approach to foreign policy and a purported break from past Bush administration policies.  ICC supporters latched onto the latter statements, hoping that such multilateral policies would result in eventual acceptance of the Court.

Since settling into office, the Obama administration’s ambivalence appears to be shifting to engagement, with the result being some movement towards creating a meaningful relationship with the Court and the notion of upholding the international justice structure.  This has been clearly seen in the US decision to obtain observer status for the ICC review conference in Kampala.  In the run up to this conference the United States took what appeared to be a very congenial position towards the Court.  Stephen Rapp, US Ambassador-at-large for War Crimes, repeatedly confirmed the United States historical relationship to the pursuit of global justice and the desire to build on this precedent in the future.  In October 2009, he stated that the US policy towards the ICC was under review.  Secretary of State Clinton went further than this stipulating, “it was a great regret” that the United States was not a member state.  Even President Obama confirmed his desire for strong forms of international justice in his May 2010 National Security Strategy:

From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law. 

But this should not be taken as evidence of Obama’s clear and definitive support of the ICC and its mandate.  Within this statement one can discern the real nature of Obama’s interpretation of the emerging international justice structure and the US role in it.  Every statement made by the administration involves some reference to establishing a Court that parallels and advances US interests.  This type of rhetoric is more reflective of a hegemonist position of foreign policy than a multilateral liberal ethical one (although there may be point of intersection that needs to be further explored).  It appears that the Obama administration is in favor of strong international forms of justice, but only those that are either controlled by the United States and serve their interests or exempt the US from their jurisdiction.  In general, the idea of American exceptionalism remains the policy of the day, but with a less belligerent method.

The resulting policy is one in which the United States wants to employ the institutions of international justice to serve their interests but do not believe these rules and processes apply to the United States.  The multilateral rhetoric that seemingly parallels a more just global order does not conform to the actions of the United States within this structure, thus placing Obama in a similar position to the latter part of the Bush administration and/or the policies of the Clinton administration.  It is a friendly relationship but not truly supportive of the Court as an independent form of justice.

Two prime examples of this hegemonic action are the recent vote on Security Council Resolution 1970 and the US decision to assist Uganda in quelling the Lords Resistance Army (LRA) threat.  The UNSC Resolution grants the ICC jurisdiction in the current case concerning Libya.  However, this resolution is very similar to the Darfur Resolution (1593) approved under the Bush administration in that it exempts the United States from prosecution.  Maybe this vote was a step forward in US-ICC relations, since Obama voted in favor of the resolution as opposed to the Bush administration’s abstention.  Clearly the Obama administration wants to pursue some form of justice for the accused in Libya, but in a Nuremberg style system of justice that assures the United States that its personnel will not face prosecution.

This scenario plays out again in the US decision on Uganda.  Last week the Obama administration decided to send a group of advisors (military personnel) to Uganda to assist their government in the removal of LRA leader Joseph Kony.  The ICC issued an arrest warrant for Joseph Kony on July 8, 2005, but to date have not been able to fulfill that warrant.  Obama’s decision appears beneficial to the ICC and its mandate because ostensibly, this provides further assistance to the Court in capturing and extraditing Kony to The Hague.  But again, before ICC supporters view this as full acceptance of the ICC by the Obama administration, do not forget that the US has Uganda’s signature on a BIA.  This once again provides the administration assurances that its personnel will not find themselves in the dock at the Hague.  This is another ICC-friendly advance by the United States, without moving to full acceptance of the Court and its mandate.

Ultimately, the one step that would provide real movement towards acceptance of the ICC is reinstating the United States signature to the Rome Statute.  In order to accomplish this, the administration would simply deliver a note to the United Nations stating that said signature is reinstated.  To date this has not happened and the Obama administration continues to claim that ICC policy remains under review.  The one definitive step they have taken is to publically state that the Rome Statute will not come up for ratification any time soon.

So where does this leave US-ICC relations?  It is clearly not the belligerent relationship that existed 10 years ago; but it is also not the full acceptance that most global justice advocates desire.  It seems that the ICC-friendly policy will continue as long as the Court can assist the United States in fulfilling its national interest.  But this is such an ambiguous term—so what is national interest?  In the third and final installment of this blog series, I will take a look at US national interest as it pertains to international justice and what this might mean for future US-ICC relations. 

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Eric K. Leonard currently holds the Henkel Family Endowed Chair in International Affairs at Shenandoah University.  He has written and presented extensively on the International Criminal Court including journal articles, encyclopedia entries, case studies and a book entitled, The Onset of Global Governance: International Relations Theory and the International Criminal Court.


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